Criminal Justice & the Rule of Law Executive Branch Intelligence Surveillance & Privacy

Don't Miss the Footnotes: Judge Leon's Opinion in Klayman (Section 215 Collection)

Raffaela Wakeman
Tuesday, December 17, 2013, 1:22 AM
Analyses of District Court Judge Richard Leon's opinion requiring the government to cease telephone metadata collection under Section 215 of the USA Patriot Act against two plaintiffs are proliferating: here are Orin, Paul and Ben, already.

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Analyses of District Court Judge Richard Leon's opinion requiring the government to cease telephone metadata collection under Section 215 of the USA Patriot Act against two plaintiffs are proliferating: here are Orin, Paul and Ben, already. The two plaintiffs in Klayman v. Obama are Larry Klayman of Freedom Watch and Michael Strange, whose son was a cryptologist with NSA, supporting Navy SEAL Team VI. The two brought their suits shortly after the Edward Snowden leaks began and claimed the government violated their rights under the First, Fourth and Fifth Amendments, and under Administrative Procedure Act (APA). They sought injunctive relief, which Judge Leon granted as to the constitutional claims and dismissed as to those under the APA. The judge stayed his order pending appeal. Here's a summary of Judge Leon's opinion. After walking through the legislative history of FISA, the judicial review mechanisms of the FISC and the FISA review court, Judge Leon describes the complexities of NSA telephony metadata collection as currently described by the DNI, the Snowden leaks, and the briefs. Judge Leon then turns to the plaintiffs argument regarding the APA. Briefly, the plaintiffs claimed that the telephony metadata program violated the APA because it exceeds FISA's statutory authority: the plaintiffs' records are not "relevant" to the national security, nor is the FISC authorized to order prospectively records that don't yet exist, they said. The government urged that FISA impliedly precluded the plaintiffs' claims, and that the provisions accurately reflect Congress's intentions for judicial review of FISC orders. Judge Leon sides with the government here, and uses the 1983 Supreme Court case Block v. Community Nutrition Inst. as its touchstone. That case set the standard for reviewing to whom statutory schemes of review are available, saying: "at least when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded. . . ." In applying the analysis of Block to the bulk telephony metadata program, Judge Leon agrees with the government that FISA precludes APA review. First, the text of FISA precludes suits by individuals who are not recipients of FISC orders to turn over business records, as recipients of those orders are expressly included in the statutory scheme. Also, the legislative history is on the government's side: Congress certainly didn't envision that third parties would even be aware of the existence of such records. Furthermore, the statutory scheme doesn't contemplate the existence of third parties, at least as it pertains to the business records provision. By contrast, other FISA provisions do require the government to notify a defendant if evidence is derived from FISA surveillance, and permit the defendant to file a motion to suppress the evidence in federal district courts. In a footnote, Judge Leon also finds persuasive the government's argument that Section 2712 of the Stored Communications Act, which provides money damages for certain violations of the Act by any aggrieved person, impliedly precludes suits seeking injunctive relief by third parties. Moving on to the constitutional claims, Judge Leon cites favorably Webster v. Doe for the Supreme Court's conclusion that to preclude Article III court review of constitutional claims, Congress must be clear. Here, as there is no express bar of judicial review in FISA, Judge Leon finds no congressional intent to preclude judicial review of third party claims (there is also, he concedes, no express grant). Judge Leon goes a bit further on this point: "Where, as here, core individual constitutional rights are implicated by Government action, Congress should not be able to cut off a citizen's right to judicial review of that Government action simply because it intended for the conduct to remain secret by operation of the design of its statutory scheme. While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution." From there, Judge Leon shifts to examine the requirements to rule in favor of a preliminary injunction: a substantial likelihood of success on the merits; whether, absent an injunction, the plaintiff would suffer irreparable injury; a substantial injury to the opposing party; and a furtherance of the public interest. The meat of Judge Leon's opinion focuses on the first requirement. But first---standing. Judge Leon begins by contrasting the plaintiffs here with those in Clapper v. Amnesty International, who were not able to trace the surveillance program to themselves and thus could not establish standing. Since the plaintiffs here are Verizon subscribers, and the infamous order pertains to Verizon, there is a high likelihood of injury in fact. Judge Leon rejects quickly one of the government's lesser arguments against standing: that the plaintiffs were Verizon Wireless subscribers, while the FISC order was directed at Verizon Business Network Services. "Put simply, the Government wants it both ways." Judge Leon reminds readers that the government is quite proud of its comprehensive metadata program ("comprehensive" meaning collecting everything, including, presumably, Verizon Wireless subscriber data). He usefully inserts a pop culture reference in a footnote in this section: "To draw an analogy, . . . omitting Verizon Wireless, AT&T, and Sprint from the collection would be like omitting John, Paul, and George from a historical analysis of the Beatles. A Ringo-only database doesn't make any sense. . ." The district court judge finds the basis for standing not in the plaintiffs' arguments on the matter, but instead in examination of the government's arguments against standing. The very comprehensiveness of the data, he concludes (citing the 2006 D.C. Circuit case of Johnson v. Quandar), "implicates the Fourth Amendment each time a government official monitors it." Next up is likelihood of success on the merits: Judge Leon reviews the metadata program through the prism of a subjective expectation of privacy (think Katz), rather than a physical intrusion (United States v. Jones). Paul summarized Judge Leon's opinion of Smith v. Maryland's third party doctrine here quite succinctly: it's old. Instead, Judge Leon views Justice Sotomayor's concurring opinion in Jones as more on point. He points out several differences between the program in Smith---a pen register---and the telephony metadata program: Smith's program lasted for a mere thirteen days, and the government likely tossed the records after the criminal case was over, while the NSA program has five years worth of data, and "there is the very real prospect that the program will go on for as long as America is combatting terrorism, which realistically could be forever!" Another difference between Smith and the program here: the relationship between law enforcement and the provider. Smith: a one-time, targeted request, versus a "daily, all-encompassing, indiscriminate dump of phone metadata." Indeed, to the district court judge, the NSA-tech company bromance is more akin to a "joint intelligence-gathering operation." The technology deployed in the 1979 Supreme Court case versus that utilized by NSA today is also worlds apart, with the latter tagged as "Orwellian," and "the stuff of science fiction." The price point also is an issue for the judge, since financial resources traditionally operate as a constraint on the breadth of law enforcement efforts. Lastly, Judge Leon points to the sheer quantity of phone metadata at NSA's fingertips, and walks through a host of statistics speaking to that: the number of 2013 mobile subscribers total approximately 3,000 times the number of subscribers in 1984, for example. In agreeing with the plaintiffs on the likelihood of success on their Fourth Amendment claims, Judge Leon admits the uselessness of Smith to him: "I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a cast that predates the rise of cell phones." Shifting to the reasonableness of the NSA queries, Judge Leon looks to the "special needs" search doctrine, the test for which requires a balancing of factors, including the nature of the privacy interest, the character of the government intrusion, and the immediacy of the government's concerns and its efficacy in meeting those concerns. Judge Leon refers to earlier parts of his opinion to conclude that here plaintiffs have a "very significant" expectation of privacy, and that the government's program "significantly intrudes" on their expectation. He dismisses, in a footnote, the restrictions under which the government operates, both statutorily and FISC-ordered, saying that they "in no way mitigate" the intrusion caused by NSA collection, querying and analysis of metadata. The government's concerns leading it to favor this type of collection are really about speed and efficiency, the judge concludes, and he highlights language employed by the government throughout its briefs to make the point: faster, quickly, rapidly, agility . . . and so on. And yet, despite these seeming efficacies, the government doesn't cite, at least in this case's briefings, to a single instance of actually stopping an imminent attack---or more generally, achieving the its objectives of protecting the homeland through this program, Judge Leon complains. And, in yet another footnote, he reminds readers that the government was more than capable of requesting permission to provide classified evidence on this point, in camera, but it opted not to. As he wraps up his 68-pager, Judge Leon concedes that his ruling conflicts with other courts' findings, but he won't have too much trouble sleeping, finding comfort in the Jones majority's statement that "[a]t bottom, we must 'assur[e]' preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." Judge Leon briefly addresses the other three requirements for a preliminary injunction, requiring irreparable harm to the plaintiffs without the injunction, and the public interest and potential injury to the other party, all of which, of course, fall in favor of the plaintiffs. He doesn't see how removing these two plaintiffs from the database will "degrade" the program. He ironically points out in one more of his footnotes that to provide the requested remedy, NSA must query the database for the plaintiffs' identifiers. Concluding with a warning, Judge Leon says: "I fully expect that during the appellate process, . . . the Government will take whatever steps necessary to prepare itself to comply with this order when, and if, it is upheld." Should the government not heed this, the district court judge says that he won't receive that news well, and might impose collateral sanctions as a result.

Raffaela Wakeman is a Senior Director at In-Q-Tel. She started her career at the Brookings Institution, where she spent five years conducting research on national security, election reform, and Congress. During this time she was also the Associate Editor of Lawfare. From there, Raffaela practiced law at the U.S. Department of Defense for four years, advising her clients on privacy and surveillance law, cybersecurity, and foreign liaison relationships. She departed DoD in 2019 to join the Majority Staff of the House Permanent Select Committee on Intelligence, where she oversaw the Intelligence Community’s science and technology portfolios, cybersecurity, and surveillance activities. She left HPSCI in May 2021 to join IQT. Raffaela received her BS and MS in Political Science from the Massachusetts Institute of Technology in 2009 and her law degree from Georgetown University Law Center in 2015, where she was recognized for her commitment to public service with the Joyce Chiang Memorial Award. While at the Department of Defense, she was the inaugural recipient of the Office of the Director of National Intelligence’s General Counsel Award for exhibiting the highest standards of leadership, professional conduct, and integrity.

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